Jackson Free Press

The Mississippi Supreme Court ruled last week that the U.S. Senate race between Roger Wicker and Ronnie Musgrove should appear near the top of the general election ballot, ending a controversy that attracted national attention and stirred accusations of partisanship on both sides.

The Court, considered by many to be sympathetic to Gov. Haley Barbour, upheld a circuit court decision finding that the original sample ballot, which Barbour approved, violated state law. Justice Jess Dickinson's majority opinion rejected Barbour's argument that state law allowed him to place the Wicker-Musgrove race, a special election, at the bottom of the ballot to distinguish it from regular elections. Section 23-15-367 of the Mississippi Code requires candidates for national office to appear first on the ballot.

"With respect to placing on the ballot a United States Senatorial race—regardless of whether or not the race is a special election—the statute's words 'The titles for the various offices shall be listed in the following orderҗcan have but one meaning," Dickinson wrote.

In deference to the separation of powers, the Court stopped short of actually ordering the governor and secretary of state to revise the ballot, but Barbour and Hosemann confirmed Thursday that they would comply with the Court's interpretation of the law.

Following the decision, Barbour issued a one-line statement, which read: "The Supreme Court has spoken; so be it."

The Court voted 8-1 on the sample ballot's legality, with Justice William Waller the lone dissenter. Waller held that Barbour's interpretation of state law was permissible and that the majority had "substantially encroached upon the constitutional authority of the Governor."

Justice Oliver Diaz, while agreeing with the Court's construction of state law, argued that the Court had not gone far enough.

"Given the governor's recent success at convincing seven members of this Court that a year is sometimes not a year," Diaz wrote, alluding to Barbour v. Hood, "[O]ne cannot fault him for daring to return to our chamber and insisting that the top is sometimes not the top."

Diaz argued that the majority's restraint with respect to the separation of powers was "well intended but ultimately misplaced." The Court, he wrote, has the power to order the governor to approve a particular ballot, because it is a ministerial action.

Barbour's actions drew criticism on a national level, including a Sept. 10 New York Times editorial that called the sample ballot a "cynical dirty trick."

Thursday's ruling was the court's second intervention in the hotly contested special election. Barbour and Hood feuded in January 2008 over setting a date for the special election. Hood argued that state law required an election be held within 100 days of Lott's resignation, in March, while Barbour claimed that state law allowed him to assign the special election to the same date as the November general election. In February, the Supreme Court sided with Barbour on that issue, in what many considered a political victory for the state Republican Party.

Musgrove and Wicker are polling closely, with a Sept. 10 DailyKos/Research 2000 poll giving Wicker a 48-43 lead. Both parties view this as a high-stakes election, because Mississippi changes senators so infrequently. Mississippi's two Senate seats have each changed hands once since the 1940s.